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Human rights universal jurisdiction arrest law to change [updated]

The Ministry of Justice is proposing to change the rules on who can apply for international arrest warrants for suspected war crimes. The changes will make it necessary to get the consent of the Director of Public Prosecutions before an arrest warrant can be granted.

The present system means that the threshold for an arrest for war crimes is low, and as such visiting ex-ministers can be arrested if only limited (or “flimsy” as the MoJ puts it) proof of the alleged crime is presented to a magistrate. The highest profile cases have been those involving ex-ministers from Israel, and in particular Tsipi Livni. As a result of the threat of arrest warrants, Israeli ex-ministers have largely stayed away from the UK.

As the MoJ statement says, war crimes under the Geneva Conventions Act 1957, and a small number of other grave offences, are subject to universal jurisdiction. This enables prosecution to take place here even though the offence was committed outside the United Kingdom, and irrespective of nationality.

A private prosecution can be brought in universal jurisdiction cases. It is open to any individual to initiate criminal proceedings by applying to a magistrate for a summons or an arrest warrant. The consent of the Attorney General or Crown Prosecution Service is not required.

The evidence required for the issue of a summons or warrant is far less onerous than that required by the Crown Prosecution Service (CPS) in determining whether a prosecution should go ahead. The court must simply be shown some information that an offence has been committed by the accused, and it does not need to decide that there is a realistic prospect of conviction.

Update 25/07/10: Sky News report that another reason for the proposed changes is the threat to the Pope of arrest: “Richard Dawkins, Christopher Hitchens and human rights lawyer Geoffrey Robertson QC were among those campaigners reported to be looking at the options for bringing a private prosecution in relation to the Pope’s alleged cover-up of sexual abuse in the Catholic Church.”

The Ministry of Justice statement:

There are a small number of offences over which the United Kingdom has ‘universal jurisdiction’. That means that a suspect can be prosecuted regardless of where the crime was committed, or the nationality of the perpetrator or victim.

Offences covered include some of the most serious under international law, such as:

war crimes under the Geneva Conventions Act

torture, and

hostage-taking.

A person accused of committing these very serious crimes in another country can be brought to justice in UK courts.

At the moment anyone can apply to the courts for an arrest warrant. That is a right that the Government wants to protect. However, because the evidence necessary to issue an arrest warrant may be far less than would be needed for a prosecution, the system is open to possible abuse by people trying to obtain arrest warrants for grave crimes on the basis of flimsy evidence to make a political statement or to cause embarrassment.

In the past, attempts have been made to obtain warrants to arrest visiting foreign dignitaries such as Henry Kissinger, Chinese Trade Minister Bo Xilai and Tzipi Livni, former Foreign Minister and now leader of the Opposition in Israel.

Announcing plans to bring forward legislation, Justice Secretary Kenneth Clarke restated the Government’s commitment to upholding international law and said:

‘Our commitment to our international obligations and to ensuring that there is no impunity for those accused of crimes of universal jurisdiction is unwavering.

‘It is important, however, that universal jurisdiction cases should be proceeded with in this country only on the basis of solid evidence that is likely to lead to a successful prosecution – otherwise there is a risk of damaging our ability to help in conflict resolution or to pursue a coherent foreign policy.

‘The Government has concluded, after careful consideration, that it would be appropriate to require the consent of the Director of Public Prosecutions before an arrest warrant can be issued to a private prosecutor in respect of an offence of universal jurisdiction.’

The Government will bring forward legislation as soon as Parliamentary time allows.

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Disclaimer: This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.